Citation Nr: 0601237
Decision Date: 01/17/06 Archive Date: 01/31/06
DOCKET NO. 04-21 816 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to an increased evaluation for post-operative
gynecological surgical residuals to include pelvic ovarian
surgery with endometriosis, status post hysterectomy, and
left salpingoophorectomy, currently evaluated as 30 percent
disabling.
2. Entitlement to an increased (compensable) evaluation for
loss of one ovary.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. S. Kelly, Counsel
INTRODUCTION
The veteran had active service from October 1983 to August
1992.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 1999 rating determination
of the St. Louis, Missouri, Department of Veterans Affairs
(VA) Regional Office (RO).
In a November 1999 rating determination, the RO denied an
increased evaluation for residuals of pelvic ovarian surgery,
then evaluated as noncompensable, and denied service
connection for endometriosis, status post hysterectomy,
either on a direct or secondary to the veteran's service-
connected residuals of left pelvic ovarian surgery.
Thereafter, the veteran appealed this decision.
In a December 2002 rating determination, the RO assigned a
100 percent disability evaluation for pelvic ovarian surgery
with endometriosis, status post hysterectomy, effective from
June 24, 1998, to September 24, 1998, and a 30 percent
disability thereafter. The RO also assigned a noncompensable
evaluation for loss of use of one ovary. Thereafter, the
veteran expressed her desire to continue the appeal.
In March 2005, the veteran appeared before the undersigned at
a hearing at the RO.
At the time of her March 2005 hearing, the veteran raised the
issues of service connection for fibromyalgia and bladder
problems as secondary to her service-connected post-operative
gynecological surgical residuals to include pelvic ovarian
surgery with endometriosis, status post hysterectomy, and
left salpingoophorectomy. As these issues are not properly
before the Board, they are referred to the RO for appropriate
action.
The issue of entitlement to an increased evaluation for post-
operative gynecological surgical residuals to include pelvic
ovarian surgery with endometriosis, status post hysterectomy,
and left salping oophorectomy is REMANDED to the RO via the
Appeals Management Center (AMC), in Washington, DC. VA will
notify the veteran and her representative if further action
is required on your part.
FINDINGS OF FACT
The veteran has had only her left ovary removed.
CONCLUSIONS OF LAW
The criteria for a compensable evaluation for removal of the
left ovary have not been met. 38 U.S.C.A. § 1155 (West
2002); 38 C.F.R. §§ 3.312(b)(1), 4.116, Diagnostic Codes 7619
(2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) and
implementing regulations impose obligations on VA to provide
claimants with notice and assistance. 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2005).
Proper VCAA notice must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
ask the claimant to provide any evidence in her or his
possession that pertains to the claim. 38 U.S.C.A. § 5103(a)
(West 2002); C.F.R. § 3.159(b)(1) (2005). VCAA notice should
be provided to a claimant before the initial unfavorable
agency of original jurisdiction (AOJ) decision on a claim.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
Discussions in the November 1999 and December 2002 rating
determinations, the April 2004 statement of the case, and the
May 2001 and June 2004 VCAA letters, informed the veteran of
the information and evidence necessary to substantiate
entitlement to the benefit sought. Moreover, in the
statement of the case and in the VCAA letters she was advised
of the types of evidence VA would assist in obtaining as well
as the appellant's own responsibilities with regard to
identifying relevant evidence. See Quartuccio v. Principi,
16 Vet. App. 183 (2002).
The May 2001 and July 2004 letters notified the veteran of
the need to submit any pertinent evidence in her possession.
In this regard, she was repeatedly advised to identify any
source of evidence and that VA would assist in requesting
such evidence, or that she could submit such evidence. This
communication served to tell the veteran that she should
furnish any pertinent evidence in her possession. 38 C.F.R.
§ 3.159(b)(1). The Board finds that all notices required by
the VCAA and implementing regulations were furnished.
In this case, the November 1999 rating determinations came
before notification of the veteran's rights under the VCAA.
VCAA notice should be provided prior to the initial denial.
Pelegrini v. Principi, 18 Vet. App. 112 (2004). Delayed
notice, however, is generally not prejudicial to a claimant.
Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Any defect
with respect to the timing of the VCAA notice in this case
was harmless. The veteran had the opportunity to have her
claim adjudicated after receiving the VCAA notice and having
the opportunity to submit additional evidence or information.
Under these circumstances, the Board finds that all
notification and development action needed to render a fair
decision on this claim has been accomplished.
Furthermore, the Board finds that there has been compliance
with the assistance provisions set forth in the new law and
regulation. The veteran was afforded a VA examination during
the course of this appeal. The record demonstrates that all
pertinent service medical, VA, and private treatment records
have also been obtained. The veteran also appeared at a
hearing before the undersigned Law Judge in March 2005. The
requirements of 38 C.F.R. § 3.159(c)(4) have been met.
Significantly, no additional evidence has been identified by
the appellant as relevant to the issues on appeal. Under the
circumstances of this particular case, no further action is
necessary to assist the appellant.
Increased Evaluation
Disability evaluations are determined by the application of
the Schedule for Rating Disabilities, which assigns ratings
based on the average impairment of earning capacity resulting
from a service-connected disability. 38 U.S.C.A. § 1155;
38 C.F.R. Part 4. Where there is a question as to which of
two evaluations shall be applied, the higher evaluation will
be assigned if the disability picture more nearly
approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7. In order to evaluate the level of disability and any
changes in condition, it is necessary to consider the
complete medical history of the veteran's condition.
Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
for that rating. Otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
The removal of ovaries warrants a 100 percent disability
evaluation for a period of three months following the
removal. 38 C.F.R. § 4.116, Diagnostic Code 7619
Thereafter, a 30 percent disability evaluation is assigned
for the complete removal of both ovaries, and a
noncompensable disability evaluation is assigned for the
removal of one ovary with or without partial removal of the
other.
Treatment records reveal that on June 24, 1998, the veteran
had a vaginal hysterectomy and left salpingo-oophorectomy.
At the time of a January 2002 VA examination, the veteran
reported that she had tried multiple hormonal therapies for
her pelvic pain, none of which provided relief.
Physical examination revealed that her external genitalia
appeared normal. On pelvic examination, no ovaries were
palpable and tenderness was felt in the lower left quadrant,
but more especially on vaginal palpation rather than
abdominal palpation. There was no cystocele, rectocele, or
fistula noted. Abdominal examination was notable for a
laparoscopic incision in the umbilicus as well as a midline
laparoscopic incision approximately 2 cm above her pubic
symphysis. These were both well healed. The veteran's last
pap smear was noted to have been within normal limits. A
recent ultrasound and CT scan were noted to have been
negative.
A diagnosis of chronic pelvic pain, status post hysterectomy
and left salpingo-oophorectomy, the etiology of which was
unclear, was rendered. The examiner noted that the veteran
had been tried on a regimen of physical therapy, which
provided no relief of her pain.
In December 2003, the veteran forwarded several reports in
support of her claim. At the time of a November 2003 visit,
the veteran complained of pain located deep inside her left
side pelvis. She noted that the pain traveled down her leg
to her foot. Physical examination revealed a highly resting
perineal body and extremely tight external anal sphincter.
When the veteran was asked to perform a PFM contraction there
was an anal wink and perineal body lift but no clitoral nod.
The veteran was unable to relax these muscles without great
concentration. When asked to bear down, the veteran
displayed a slight perineal body drop but no dilation or
relaxation of the anal sphincter.
External palpation of the pelvic clock demonstrated
tenderness bilaterally over the levator ani mm and obturator
internus muscles. There was no pain or tenderness with
palpation of the external urogenital triangle muscles.
Internal palpation revealed tenderness and extreme muscle
guarding of the levator ani, obturator internus, and
pyriformis muscles. Also present was tenderness over the
coccyx and decreased mobility was noted when the veteran
recruited the pelvic floor musculature.
In a November 2003 physical therapy report, the veteran was
noted to have been seen for three visits.
At the time of her March 2005 hearing, the veteran testified
to having pain which radiated down her back and through her
leg. She stated that she had been referred to the VA pain
clinic. The veteran reported taking Celexa, Tylenol T3, and
a muscle relaxer on a daily basis. She noted that she had
been doing physical therapy for the past five or six months.
The veteran stated that this did not help her condition. She
indicated that it was interfering with her work at one point.
In her substantive appeal and testimony the veteran
acknowledged the noncompensable evaluation for removal of one
ovary, but argued for a separate compensable evaluation for
adhesions.
The veteran underwent a total hysterectomy on June 24, 1998,
which removed the corpus of the uterus, and the left ovary.
There is no dispute that the veteran had only one ovary
removed. As the veteran's hysterectomy is medically shown to
have involved the removal of only one ovary, no more than a
noncompensable evaluation is warranted under DC 7619.
Under the provisions of 38 C.F.R. § 3.321, in exceptional
cases an extraschedular evaluation can be provided in the
interest of justice. The governing norm in such a case is
that the case presents such an unusual or exceptional
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization as to render impractical the application of
regular schedular standards. In this case marked
interference with employment has not been shown and the
veteran's disability has not required any periods of recent
hospitalization.
The veteran has not been recently hospitalized for the ovary
removal. While the veteran has reported that her
hysterectomy residuals interfere with her employment in that
she had to take a lower paying job, this employment
difficulty is claimed as the result of the adhesions and not
form the removal of the ovary, per se.
The record does not suggest, based upon these findings
documented within the clinical reports, that the appellant
has an "exceptional or unusual" disability such to require
referral to the Under Secretary for Benefits or the Director,
Compensation and Pension Service.
Accordingly, the Board finds the evidence is against a
compensable rating for removal of one ovary, and the claim
for increase is denied.
ORDER
A compensable evaluation for removal of the left ovary is
denied.
REMAND
In an October 2000 letter, the veteran's private physician,
K. Davis, M.D., indicated that it was his opinion that it was
as likely as not that the ovarian adhesions that developed on
the veteran's left fallopian tube and ovary, which were
removed by laparoscopic surgery while in the military, were
from endometriosis. The veteran was noted to have a long
history of severe pain and discomfort dating back to her time
on the military. The veteran was also noted to have had
severe adhesions at the time of a January 1998 laparoscopic
procedure. It was also reported that she had Allen-Masters
syndrome. Dr. Davis stated that all of these conditions were
connected with a long history of endometriosis.
In a February 2002 addendum, the VA examiner indicated that
he had been asked to comment on the letter from Dr. Davis.
The examiner stated that he had no information to dispute Dr.
Davis' opinion of the nature of the veteran's adhesions and
that he had the disadvantage of not seeing pictures of his
findings. He noted that the operative report from the 1998
laparoscopy performed by Dr. Davis indicated the presence of
Allen Master's syndrome. He reported that if Dr. Davis
stated he saw this laparoscopic finding, he agreed that the
veteran had endometriosis.
At her hearing the veteran contended that she had additional
disability from adhesions and that she has had problems with
leakage following her surgery. She has not had a recent
examination to address these symptoms. An examination is
therefore necessary.
The veteran also testified that she was under continuous
treatment at a VA women's clinic for the condition at issue.
The record does not contain records of this treatment. VA is
obligated to seek them. 38 U.S.C.A. § 5103A(b),(c) (West
2002).
The veteran also testified that the disability at issue had
forced to take a lower paying job. She reported that her
income had been reduced by between 15 and 20 percent. This
testimony raises a question of entitlement to an
extraschedular rating. In such a case the veteran must be
afforded an opportunity to submit employment records showing
the impact of his disability on employment. Spurgeon v.
Brown, 10 Vet. App. 194 (1997).
Accordingly, this case is remanded for the following actions:
1. Invite the veteran to submit
employment or other records documenting
the impact of her disability on
employment.
2. Obtain all records of the veteran's
gynecologic treatment at the VA women's
clinic.
3. Afford the veteran a VA gynecologic
examination. The examiner should assess
whether the veteran has urethrovaginal
fistula or fistulae, and if so whether
they require the wearing of absorbent
material or use of an appliance. If
absorbent material is required, the
examiner should note the frequency with
which the absorbent material must be
changed.
The examiner should also note whether
there are adhesions involving the ovary,
and if so whether the symptoms are not
controlled by continuous treatment, or
require continuous treatment.
Finally the examiner should express an
opinion as to whether the disability
would be expected to cause marked
interference with employment. The
examiner should provide a rationale for
all opinions.
4. After ensuring that the requested
development is complete and all requested
opinions have been obtained, re-
adjudicate the claim, and, if there is
evidence of marked interference with
employment, refer it for extraschedular
consideration.
Then issue a supplemental statement of
the case before returning the case to the
Board, if otherwise in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs